JUDGMENT 1. - These appeals are to be decided by this single judgment as appellants Ganesha Ram and Madan Lal have been convicted and sentenced by the same judgment of learned Additional Sessions Judge, Sriganganagar in Sessions Trial No. 46/97. Three persons faced trial out of whom Mahaveer e has been acquitted. 2. Briefly stated, on 11.1.1996 at 2.30 PM. Smt. Murti went to police station Rajiasar and submitted first information report Ex.P/1 which mentions that four days before she along with her husband Asharam and his aunty Geeta Devi as well as other relations had come to Thakurana. These persons to used to sell general items including bangles etc. by pheri. At about 3.00 P.M. on 10.1.1996 when she was going with a head load of various items, Mahaveer caught hold of her in the way and fell her down. Ganesh and Madan came there. They dragged her to a kotha which was ruined. She was made to lie down there and her undergarments were checked by Madan. is Ganesha Ram caught hold of her face and her neck and Madan gave her beatings. She was afraid of them. Then Madan turned her `ghaghara' and after opening his own trouser inserted his penis in her vagina. Thus he committed rape. Thereafter Madan caught hold of her face and Ganesh repeated the act. Kishan Swami came there who threatened them and then these persons ran away. Mahaveer had not committed rape with her. Police registered first information report under Sections 376, 323, 342/34 IPC. After registering the case Investigation was started during which site plan Ex.P/3, memo Ex.P/3-A were prepared. Odna and pair of chappals of Murti were recovered from the place of occurrence. They were seized vide ExP/4. Her `ghaghara' was seized vide Ex.P/5 She was medically examined and report Ex.13/4 was obtained. After investigation challan was submitted before the Magistrate having jurisdiction who committed the case to the learned Sessions Judge, Suratgarh. Charges under Section 376(1) IPC were framed against the appellants who denied them and claimed trial. Prosecution examined as many as 14 witnesses in support of its case. Appellants were examined under Section 313 Cr.P.C. They did not produce any evidence in their defence. Learned Sessions Judge, after hearing both the parties, convicted the appellants and sentenced each one of them for 10 years' rigorous imprisonment with a fine of Rs. Prosecution examined as many as 14 witnesses in support of its case. Appellants were examined under Section 313 Cr.P.C. They did not produce any evidence in their defence. Learned Sessions Judge, after hearing both the parties, convicted the appellants and sentenced each one of them for 10 years' rigorous imprisonment with a fine of Rs. 1,000/- each and in default to undergo four months' simple imprisonment. It is against this conviction and sentence that they have come in appeals. 3. I have heard the learned counsel for the appellants as well as learned Public Prosecutor at length and have gone through the record. 4. Learned counsel for the appellants submitted that so far as Ganesha Ram is concerned, Smt. Murti has herself stated that he did not commit any sexual intercourse with her and has denied the version given in the first information report and in her previous statement recorded under Section 161 Cr.P.C. It was submitted that the charge should have been specific against him that he aided or abetted the offence. But there is no such charge. 5. Learned counsel submitted that in this case appellant Ganesha Ram faced the charge under Section 376(1) IPC which was not correctly framed qua him because the evidence led by the prosecution itself proves that he did not commit rape. So far as present case is concerned, I may mention that the challan was submitted, the court had police papers including statement of Smt. Murti Ex.D/1 disclosing the allegations of rape against Ganesh. Therefore, learned Sessions Judge framed charge under Section 376 IPC against him. But Murti has not substantiated it and has stated that this appellant did not commit rape with her. The argument of the learned counsel on his behalf is that he deserves acquittal as Murti has absolved him. 6. So far as appellant Madan Lal is concerned, it has been submitted that the first information report is delayed extraordinarily and that Murti did not know the name of the appellant. It is also submitted that there is no medical corroboration of the offence as no injury on her private parts was found by the doctor who examined Smt. Murti. So far as appellant Madan Lal is concerned, it has been submitted that the first information report is delayed extraordinarily and that Murti did not know the name of the appellant. It is also submitted that there is no medical corroboration of the offence as no injury on her private parts was found by the doctor who examined Smt. Murti. Counsel submitted that though relevant pieces of evidence were sent for chemical examination, yet report of chemical examiner is not available on record and the presumption will be drawn against the prosecution under Section 114(g) of the Evidence Act. He submitted that the whole case of the prosecution is unreliable and appellant Madan also deserves acquittal. 7. On the other hand, learned Public Prosecutor has tried to support the judgment of learned Sessions Judge. 8. I will first take up the case of appellant Ganesha Ram. The most important witness in this case is PW-1 Smt. Murti herself. She has stated that first information report was lodged by her husband whom she had narrated the story. The first information report itself states that it was Smt. Murti who narrated the story to her husband. It mentions that Ganesh had also committed rape with Smt. Murti. When Murti appeared as a witness, she stated that report was presented by her to the Station House Officer, Rajiasar and her husband was present with her. But when her attention was drawn to the material contradiction, she made in her examination in chief with regard to the rape committed by Ganesh. She stated that she did not make such a statement in the first information report. Similarly, she also stated that she did not know as to how portion `A' to `B' in her statement Ex.D/1 was mentioned so which related to the alleged rape by Ganesh Ram. She has stated in examination in chief that when Madan committed rape with her Ganesh was pressing her mouth. But this cannot be accepted in view of her earlier versions in the first information report and the statement under Section 161 C.P.C.She has completely absolved Ganesh so far as rape is concerned. 9. Ashararn PW-1, who is the husband of Smt. Murti, stated that he had gone to another village on the date of occurrence where Om came and told that his wife was raped by Madan. 9. Ashararn PW-1, who is the husband of Smt. Murti, stated that he had gone to another village on the date of occurrence where Om came and told that his wife was raped by Madan. Then he came to his wife who told that it was Madan who felled down her `gathari' (head load) and then Madan, Mahaveet and Ganesha Ram took her to a kothri where it was Madan who committed rape with her while Ganesha was pressing her mouth. It means that when the first information report was lodged an exaggerated version was given. He has stated in the cross examination that whatever is written in Ex.P, 11 was the version given by his wife Smt. Murti who dictated the report to the person who scribed it. In the facts and circumstances it cannot be accepted that Ganesha might have even pressed her mouth when she was allegedly raped by Madan. Prosecution was not able to prove its case against Ganesha Ram when prosecutrix is herself absolving him. Therefore, appeal No. 57/98 filed by appellant Ganesha Ram is worth acceptance as he deserves acquittal. 10. So far as appellant Madan Lal is concerned, I will discuss the first argument about delay. The case of prosecution is that Smt. Murti and her family members including her husband are members of such a business community which goes on `pheri' and sells general items including bangles etc. to the villagers. Smt. Murti, her husband and other members were staying in village Thakurana. Her husband Asharam had gone to another village Faridsar alongwith his uncle. It were Smt. Murti and a aunty of Asharam who stayed in village Thakurana. Murti has stated that when she was going on a pheri she was taken to kotha where rape was committed with her. The time the alleged incident was about 3.00 P.M. After the incident, information was sent her husband Asharam who received information about 3.30 PM. then he came to village Thakurana which was at a distance of about six miles from Faridsar. According to him he came within an hour. Thai means that he reached village Thakurana by 4.30 PM. or 5.00 P.M. He went to the site. It were Hansiaj and Birbal who told him that they had seen the occurrence. then he came to village Thakurana which was at a distance of about six miles from Faridsar. According to him he came within an hour. Thai means that he reached village Thakurana by 4.30 PM. or 5.00 P.M. He went to the site. It were Hansiaj and Birbal who told him that they had seen the occurrence. He has stated that he stayed over night and he and his wire went next day to police station on foot which was at a distance of about 20-25 km. They reached at the police station at about 1.30 or 2.00 P.M. Report Ex.P/1 was lodged at 2.30 P.M. So the delay of about 24 hours is explained properly. It was submitted by the learned counsel that the matter should have been reported to the police station immediately as soon as husband of Murti came back to village Thakurana. This is also explained in the first information report itself. The night had set in and there was no means of communication. Therefore, the argument of the learned counsel that delay has not been explained, has no value in the facts and circumstances of this case. Secondly, delay alone would not be a ground to reject the story of prosecution unless it is such that in intervening period the prosecution might have concocted/created some evidence. It is not so in the present case because the prosecutrix and her family members do not belong to village Thakurana. They had come from outside to sell the general items by pheri. They were camping at quite a distance from the place of occurrence. No villager had personal interest, no villager was their relation and, therefore, firstly the delay has been explained and secondly if there was some delay, it was not such that story might have been concocted. it has been submitted that Kishan stated that Murti and her husband went to police station at about 7.00 PM. on the day of occurrence on tractor of Om Prakash. According to him when both of them had gone there in the evening itself, it is not explained as to how and why the report was registered next day at 2.30 PM. Statement of Kishan to this effect is not corroborated by any other witness. Even Om Prakash PW- 8 does not support the story that Murti and her husband were taken on the tractor to police station. Statement of Kishan to this effect is not corroborated by any other witness. Even Om Prakash PW- 8 does not support the story that Murti and her husband were taken on the tractor to police station. Secondly, when Kishan himself says that after rescuing Smt. Murti he had gone to his house, his version that Murti and her husband went in a tractor to police station is not worth acceptance. It is proved by PW-2 Asharam himself that he and his wife -10 went on foot to the police station as there was no means of communication available in the night of that date when occurrence took place. 11. So far as sexual act committed by appellant Madanlal is concerned, Smt. Murti has stated that the appellant committed rape with her in the kotha which was deserted and was in wined condition. She was threatened after dragging there. She suffered a number of injuries. She started weeping and her weeping was heard by Krishna Swami who came there and thereupon the appellant ran away. 12. PW-3 Kishan was produced on behalf of prosecution. He stated that he heard noise and went to the place of occurrence where he heard the cries of Murti. He then exhorted the appellant who ran away and who was seen by him running away. He also saw Murti coming out of the kotha who told him that it was Madan who committed rape with her. The witness knew Murti from before because her husband was coming on various occasions to the village and she was also coming often to the village in order to sell the general items by pheri. He has also stated that Mani Ram had also come. This witness Kishan was cross-examined at length and he has maintained that he saw the appellant coming out of the kotha when he reached there after hearing the cries of Smt. Murti. He also saw Murti coming out of kotha. Therefore, I am not going to disbelieve Murti when she says that it was appellant Madan who committed rape with her. She is fully corroborated by PW-3 Kishan. 13. Mani Ram PW-4 has also stated that at about 3.00 PM. he heard the cries of weeping and when he reached at the place of occurrence he found that Murti was weeping and she told that three boys had dishonoured her. She is fully corroborated by PW-3 Kishan. 13. Mani Ram PW-4 has also stated that at about 3.00 PM. he heard the cries of weeping and when he reached at the place of occurrence he found that Murti was weeping and she told that three boys had dishonoured her. He has stated that Murti did not utter their names. The witness was declared hostile. Even then from his statement it is proved that something had happened to Smt. Murti. 14. It has been submitted by the learned counsel for appellant Madan that Murti did not know the name of Madan neither did she know him by face, so prosecution is not able to prove as to how he was identified. This is not correct. PW-1 Murti has stated that it was Madan who committed rape with her and when Krishna Swami came, he ran away. In cross examination she has stated that she did not know the appellant by name but she knew him by face. But later on she stated that she knew Madan by name as well as by face before the report was lodged at the police station. It is thus clear that the person who had deflowered her was known to her from before and she identified him and, therefore, after verifying, named him. Therefore, to say that it might be a case of mistaken identity is not worth acceptance. Murti, who was dragged from the way, was taken to the ruined kotha and was raped by the appellant with whom she has no enmity and whom she knew from before so as she used to visit village Thakurana very often is a story which cannot b said to have been concocted to falsely involved the appellant. It has been submitted that the villagers were against the appellant and, therefore, they have used Smt. Murti to implicate appellant Madan. I do not agree with this contention for the simple reason that husband of Murti and Murti herself were not so gullible that they would be misled by villagers to Implicate the appellant. Secondly, no married lady would involve her honour in order to oblige villagers who had never obliged her on any account. 15. Kishan PW-3 is the witness who had seen the appellant coming out of the kotha. He was suggested that he was involving the appellant under the influence of husband of Smt. Murti. Secondly, no married lady would involve her honour in order to oblige villagers who had never obliged her on any account. 15. Kishan PW-3 is the witness who had seen the appellant coming out of the kotha. He was suggested that he was involving the appellant under the influence of husband of Smt. Murti. There appears to be no reason why husband of Murti would influence this witness. He hes stated that he had seen the appellant coming out of kotha and he should be believed. 16. Other witnesses viz. PW-6 Ram Pratap, PW-7 Seetaram, PW-8 Om Prakash and PW-9 Sayar Singh have not supported the story of the prosecution. But PW-9 Sayar Singh has stated only that he saw people collecting behind the house of Pratap in the village. Thus it is proved that the people collected with regard to this incident after it was over. 17. PW-13 Smt. Geeta, who is a relation of Smt. Murti has stated that she did not see the appellant but she did see that the articles which were carried by Smt. Murti were scattered on the street. She also saw that Murtis chappal was also lying. She did not see the appellant. She might have reached after the occurrence had taken place. 18. So far as medical evidence is concerned, PW-10 Dr. O.P. Sharma examined Murti on 11.1.1996 and found seven abrasions on her person. They were placed on face, right elbow, right knee, right leg and left knee. She made a complaint of pain on her back and thighs. He stated that possibility of rape could not be ruled out. Learned counsel submitted that there was no injury on the genital part of Murti and it means that no rape was committed with her. Cross examination of Dr. O.P. Sharma is very material when he says that it was not necessary that she may suffer injury on her genitals even if she resisted. He stated that on resistance the way may suffer injuries on her thighs. I find from the report that she had injuries on her thighs. He stated that there were white spots on the `ghaghara' of Smt. Murti. The vaginal slides were prepared. `Ghaghara' and vaginal swabs were sent for chemical examination but the report has not been produced. He stated that on resistance the way may suffer injuries on her thighs. I find from the report that she had injuries on her thighs. He stated that there were white spots on the `ghaghara' of Smt. Murti. The vaginal slides were prepared. `Ghaghara' and vaginal swabs were sent for chemical examination but the report has not been produced. Even if it is presumed to be in favour of the appellant, it hardly matters because when there is direct evidence of Smt. Murti supported by circumstantial evidence that rape was committed by appellant Madan Lal with her case of prosecution is rightly stands proved beyond doubt. 19. The circumstances speak volumes against the appellant. Murti was dragged from the street to a deserted kotha and it is proved by evidence that of Murti and pair of chappals remained at the place. The odna and pair of chappals were recovered vide Ex.P/4 which is proved by PW- 14 Madan Lal, motbirs of which are Mani Ram and Kishan. Kishan PW-3 does support the prosecution and Mani Ram also states that when he reached, he found a `chunri' and a pair of chappals lying. He stated that same were not recovered es before him. But when he himself admits that these things were lying and he signed the memo Ex.P14, his version that the articles were not seized before him, cannot be accepted. He had seen the articles lying. All this evidence proves that rape was committed by Madan on Smt. Murti. 20. Learned counsel for the appellant citing Prahlad Singh v. State of Madhya Pradesh, 1997 Cr.LR (SC) page 715, submitted that unless and until there is reliable and acceptable evidence to come to a conclusion that it is accused appellant who committed rape, he cannot be convicted even if the factum of rape on the prosecutrix is established beyond reasonable doubt. He submitted that the prosecutrix did not know appellant Madanlal and she could know his name only through her husband. Therefore, unless his identity is proved beyond doubt he cannot be convicted. In the facts and circumstances of this case Prahlad Singh's case (supra) does not apply because the facts in that case are clearly distinguishable. In that ease prosecutrix was a minor girl who stated in the court that she was tutored by her father and police inspector before she gave evidence in the court. In the facts and circumstances of this case Prahlad Singh's case (supra) does not apply because the facts in that case are clearly distinguishable. In that ease prosecutrix was a minor girl who stated in the court that she was tutored by her father and police inspector before she gave evidence in the court. She did not know the accused. In those circumstances it was held that identity of the accused appellant was not established and he could not be convicted though the fact of rape was established. In the case in hand Smt. Murti has stated that she knew accused appellant Madan Lal from before and it is clear from her evidence that his name was also known to her before the report was lodged with the police. She know him from before and his identity has been established beyond doubt. Therefore, the argument of the learned counsel that identity of the appellant is not established, is not wroth acceptance. Learned counsel also relied upon Baldeo Singh & Anr. v. State of Rajasthan, 1997 Cr.LR (Raj.) page 51 and Sher Singh v. State of Rajasthan, 1997 Cr.LR (Raj.) page 306 and submitted that Smt. Murti was not a reliable witness and that no injury was found on the private part of Smt. Murti, therefore, she should not be relied upon. I do not agree with these contentions of the learned counsel based on these rulings. The facts in the cited cases are different than the facts of the present case. Here, Murti has suffered injuries on her body which have been stated in earlier part of this judgment. Evidence of Smt. Murti so far as appellant Madan Lal is concerned is not contradictory and the has proved beyond doubt that it was he who committed rape with her. The story is corroborated by circumstantial evidence. Therefore, the offence of rape under Section 376 IPC is proved beyond doubt against appellant Madan Lal. 21. For guidance of learned Sessions Judge it may be stated that after the amendment of Section 376 IPC specific charge either under Section 376(1) or 376(2) IPC should be framed because the two offences differ not only in the gravity of the punishment, with which they may be visited, but also because special rule of evidence, namely, presumption, is attracted to one kind of offences but not to the other. Secondly, offence under Section 376(1) IPC is punishable with minimum sentence of seven years, unless special and adequate reasons are given in the judgment for imposing a lesser sentence and the offence under Section 376(2) IPC is punishable with minimum sentence of ten years, unless in cases of the said offence also, special and adequate reasons are given in the judgment for imposing a lesser sentence. I agree that the charges should be clear and specific because offence under Section 376(2) may be said to be an aggravated offence for which a distinct charge is necessary because there is presumption under Section 114-A of the Evidence Act to the effect that if a woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent, is attracted to cases of rape falling under sub-section (2), except when the case is under clause (f) thereof. No such presumption is attracted to cases of rape falling under Section 376(1) IPC. It will be seen that the cases of custodial rapes of women by certain public servants, rape on a woman known to be pregnant, or on a woman under 12 years of age or gang rape fall under sub-section (2) of Section 376 while residuary cases of rape are covered under sub-section (1) of Section 376 IPC. If the charge is not framed properly or is framed incorrectly, it may be made a ground by an accused to make a grouse that he had no proper notice of the prosecution case he had to meet. The charge should, therefore, always be framed in cases of rape either under sub-section (1) or sub-section (2) of Section 376 IPC and conviction should also be so distinctly recorded, instead of under Section 376 IPC as such. I am fortified in this view by 1993 Cr. LJ page 1825, Ramcharan v. State of Madhya Pradesh . 22. So far as sentence is concerned, Madan Lal has been sentenced to ten years' rigorous imprisonment under Section 376(2) IPC while the charge against him was under Section 376(1) IPC. Offence of gang rape has not been proved and what has been proved is the offence under Section 376(1) IPC. According to this provision the minimum sentence would not be less than seven years. Offence of gang rape has not been proved and what has been proved is the offence under Section 376(1) IPC. According to this provision the minimum sentence would not be less than seven years. Therefore, conviction of appellant Madan Lal is altered from Section 376(2) (g) to 376(1) IPC and sentence is reduced from ten years' to seven years' rigorous imprisonment with a fine of Rs. 1,000/- and in default to undergo four months' simple imprisonment. 23. Consequently, appeal of Ganesha Ram is allowed and he is acquitted from the charge of Section 376(2) IPC. He is in custody and shall to be released forthwith, if not required in any other case. 24. Appeal of Madan Lal is partly allowed. His conviction under Section 376(2) (g) (PC is altered to Section 376(1) IPC. He is sentenced to seven years' rigorous imprisonment with a fine of Rs. 1,000/- and in default to undergo four months' simple imprisonment. Thus, conviction and sentence of appellant Madan Lal stand altered. Copies of this judgment be sent to all District and Sessions Judges in view of guidelines in para No. 21 of this judgment.Order accordingly. *******